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Monday, March 09, 2009

Should expunction burden fall on defendants when charges fall through?

When police and prosecutors make a mistake and pursue charges against a defendant they cannot prove, should the defendant have to pay out of their own pocket to get the records expunged or should it be the state's responsibility?

That's the crux of the question raised by HB 293 by Rep. Harold Dutton which was heard in a subcommittee hearing of the House Criminal Jurisprudence Committee this morning. (See the video here starting at the 7 min., 30 second mark.) While some significant questions were raised that could result in the bill's alteration, the legislation was relatively well received and the members mostly appeared to support it.

Dutton's bill would require automatic expunction in cases where the defendant was pardoned, acquitted, or the case is dismissed. As mentioned previously, the legislation would also shift the burden to the state to clear the defendant's name when accusations never come to fruition.

I testified for the bill on behalf of the Innocence Project of Texas because so many DNA exonerees have trouble finding jobs, housing, etc., even though they've been cleared by the courts and in many cases received pardons. State and private databases continue to dredge up information about their cases that causes employers and landlords to reject them.

Especially for lesser offenses, the collateral consequences of having bad information in public databases can be more serious, even, than incarceration or other punishments.

Several of Texas' DNA exonerees have told me they must carry newspaper clips about their exoneration to job interviews in order to explain why they still show up as violent felons in state and private databases. But even with that documentation, once their application is submitted, too often some bureaucrat in the Human Resources department will later run a database query that keeps them from getting a job.

The bill's main sticking point, as a functional matter, was whether it should include "dismissals" that occur after a defendant has been given deferred adjudication and successfully completed a community supervision stint. Some prosecutors said that such information should be kept in case the person commits more crimes in the future, but the subcommittee didn't seem exceptionally sympathetic to that complaint.

Rep. Paula Piereson, to her credit, spoke knowledgeably and forcibly about flaws in Texas' deferred adjudication statute, complaining that defendants took such deals because they were told there would be no "conviction" on their record, only to learn years later that employers, landlords and others could still access the information and they were not eligible for the information to be expunged. Piereson declared that Texas should either "do away with deferred adjudication" or allow the records to be expunged, as Rep. Dutton proposed. "Deferred [adjudication] does not work," she opined.

The subcommittee seemed inclined to identify a list of specific offenses - mostly violent crimes, sex crimes, and possibly family violence, to judge by the discussion - where records should not be expunged.

Another prosecutor concern dealt with whether an expunction would harm cases where charges are dismissed with the intent of later refiling them. It seems to me, though, this could be easily addressed by inserting language that requires a prosecutor to declare whether they intend to keep open the option for re-indictment, perhaps establishing a deadline beyond which, if no new charges are filed, the records would be expunged.

Neither of these seemed like insurmountable objections.

The only other significant concern raised about the bill was a lame argument that this would be an unfunded mandate. Of course, DAs have no problem paying to pursue these cases, they just don't want to pay to do right by the defendant after they make a mistake.

In terms of cost, the committee was told that some counties charge a court fee to apply for expunging records - in Harris County, e.g., the fee is $250 - plus the defendant must typically pay an attorney, perhaps somewhere in the range of $1,500 to file the motion with the court.

As drafted, Dutton's bill entirely places the onus on the state to pursue expunction in these cases, including the cost, but there was some discussion of whether a $250 fee to the defendant might overcome the "unfunded mandate" objection. On fairness grounds, I don't particularly like that idea. If the burden of proof in court is on the state to obtain a conviction, it seems only just that the state should be responsible for making the individual whole when they're unable to meet that burden.

If prosecutors have enough manpower to pursue a case, they should be willing to devote the manpower to see it through to the end, win or lose. HB 293 is a terrific bill and, with a few adjustments, I'm hopeful the committee and the Legislature will approve it.

I appreciate Rep. Pierson's comments, and agree with her. I have first-hand experience with both the prosecutor and defense attorney stating that the defendent would have "no criminal history" after a nolo contendre plea. Even a non-disclosure motion isn't necessarily granted.

Rep. Farrar's HB 2213 is very good, too, and provides for "grandfathering" of cases occurring before Sep. 1, 2009. Besides that and the "automatic" expunction provisions in Dutton's bill, how are the two different and could they not be merged into one really good piece of legislation?

So a person commits an offense and receives deferred adjudication and then later in the future commits another offense. Someone is actually trying to argue that the fact that the person had already received some form of probation, how that person did on probation, and the facts underlying the offense that the person was put on probation for are off limits, not relevant, destroyed forever? No decision maker will have access to that information when trying to determine the appropiate punishment for offense #2???What an absurd and ridiculous proposition and so indefensible it borders on the moronic!

Per my testimony yesterday; Expunction should be automatic upon dismissal or acquittal and after completion of a sentence. WHY? (1) Because the effect of a PUBLIC arrest record is to put the Citizen outside the protection of the law. It subjects them to all sorts of discrimination. It deprives them of the full Rights of Citizenship. (2) Because the INTENT of the provision of our Bill of Individual Rights was to guard against this. This is obvious to one that knows History. Per Sec 29; excepted from the powers of government to forever remain inviolate. The Expunction Law has been utilized to DEPRIVE Citizens of this Constitutionally secured Protection. www.informed.org

This problem with the state criminal justice system is the same as it is in the civil courts. The loser doesn't have to pay. Upon acquittal, the state should pay all costs for returning the accused reputation and life to the status it was before they were accused. The same thing should happen when these vultures try and sue McDonalds for hot coffee. The loser should pay all costs.

To 6:51 who writes: "Someone is actually trying to argue that the fact that the person had already received some form of probation, how that person did on probation, and the facts underlying the offense that the person was put on probation for are off limits, not relevant, destroyed forever?"

You're confusing deferred adjudication with "probation," which is a punishment after conviction.

The (deceptively framed) incentive for people to accept deferred is that there is no conviction and when they complete it their case will be dismissed. But employers, etc., still hold it against them the same as a conviction. As for "how that person did on probation," the records wouldn't be expunged unless they successfully complete the supervision period. So if the records are expunged, they must have done okay.

Wouldn't the solution be to block access to the information of the prior offense or limit access to the information instead of destroying it and thus depriving judges and juries of valuable information on what an appropriate sentence should be for a "repeat offender." The sane solution should be to protect and limit access not destroy. The more information available to people who make important sentencing decisions the better the outcome.

As Rep. Pierson said, and several bloggers here, and Grits, one of the problems with deferred is the LYING. I don't know how many people I've known that were misled, both by the prosecutor and their own defense attorneys. You can argue about whether or not to even have deferred, but let's don't have it under the farce that it has been so far. You should either have a conviction or not. As it stands, it's just a way to get someone to plead guilty, period. Much injustice has been perpetrated under this crap called Deferred Adjudication. If you dismiss the charges, expunction should be automatic.

Cheers for Rep. Pierson! Deferred Adjudications are not convicitions!! This is stated in the Criminal Code of laws and people are told this will not show on their record, but someone either willingly or on purpose left this fact go and DAs have hurt a lot of people and those people who have been hurt were lied to by the court system, especially the District Attorney's as well as their own attorneys.

Who dropped the ball, well to begin with, the courts dropped the ball first, they were to notifiy DPS the Deferred Adjudication had been completed and the record was to have been removed, but this was not done by the courts and DPS is so out of control they would not have any idea what was the next step. Something needs to be done in order for those who made mistakes either in their youth or in some mistaken thought or action and some who actually did nothing, deserve a chance to be able to work, find happiness and a place to live and raise their families.

Legislators, get on the ball and pass this bill, make the courts responsible for this autrocity they have caused in the lives of many in Texas. Do the right thing.

Re. the McDonalds/Hot Coffee reference - McDonalds was serving coffee so hot it caused third degree burns, requiring skin grafts. The lady asked for her medical expenses, and didn't get them, so she sued. The history of the case is at: http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants

I don't vouch for its complete accuracy, but it's an interesting story and there seems to be much more to it than the urban myth suggests.

Regarding the woman and the coffee, She took fresh coffee, and placed it between her legs in an automobile. it spilled thus burning her legs and that region.

If this were the 40's everyone would know that you don;t take something that is effectively boiled in a paper cup, and place it between the two strongest muscles on your body and then use those muscles to drive a motor vehicle at the same time. but no, this was the last part of the 20th Century where we forgot about common-sense and went with sue them all sense... Maybe that explains all of the laws being passed the last 20 years that are now being looked at again with elected officials slapping foreheads and wondering why they ever passed such stupid laws...

There should be NO exception list. If the state wants to ensure that someone remains carrying a record, then they need to take DA's off the books for the crime, much like DWI.

This a very bad idea to say we are gonna offer you this deal of no conviction, but oh yeah, now that you have signed, YOUR crime cannot be expunged because of this itty bitty type right there.. see it?

Deferred adjudication is a second chance for one time offenders. The State needs to keep up its side of the agreement. If the person on DA makes it through the period of time without committing a new crime, or if they abide by the rules, then the state should be forced to release them from any further record.

This is a little off the topic, but it does have to do with criminal records and someone mentioned crimes that take place in one's youth.

I understand the concern that we cannot have a situation where career-types can essentially start over when they turn 17 or 18, but there are those cases of a single incident at a young age which ought to have a remedy such as a pardon.

You can get the record sealed, but I believe certain entities, such as the military, can still access it. I heard testimony from an Army General and he told a couple of ridiculous stories for which they had issued waivers.

In these days of Zero Tolerance and add to that "the law of parties", there should be a method of correction.

There are probably some out there who do not know that waivers are available for a thing that might have happened when they were 8 and choose another career path.

Of course, even a pardon won't absolutely ensure that these data bases are correct.

The only problem I see with Dutton's HB 293-is that is includes offenses occurring after the bill is passed. This does not include expunging anyone who had an offense in the past. Many people have a one time offense from years ago, and have been model citizens with no further incidents. What about these people? How long must one be punished for something they never were convicted for?? Anonymous 06:51, you obviously are uninformed as to what deferred adjudication actually entails. Grits did a great job of explaining in the 07:36 post. Thanks to Grits for the clarification. If someone successfully completes all terms of the supervised period-while on the deferred adjudication-the judge dismisses the charge, with absolutely NO CONVICTION imposed. That is the purpose/benefit of opting for a deferred plea-instead of taking the case to a trial. But-the collateral consequences, such as denial of occupational licenses, gainful employment, housing, volunteering,etc are almost worse than the actual supervision. These collateral consequences include the presence of the arrest record/files related to the original charge. Currently, only those with a Class C misdemeanor offense qualify for expunction of this information. Please see Rep. Dutton's HB 945, and Rep. Farrar's HB 2213 for reference.And kudos to Rep. Pierson for her support on this injustice. The time for change is NOW.

The person plead guilty and was placed on community supervision. To say that the facts surrounding the offense and how the person performed on community supervision should not be made available to the people who are charged with deciding the appropriate punishment and rehabilitative needs should that person violate the law again in the future is pure insanity. It seems a reasoned solution would find a way to have that information available to law enforcement and court personnel only. To have a sentencing authority believe that they are dealing with a first time offender when that is not the case is the ultimate LIE and would cause people to have even less faith in the justice system.

Anon. 11:48 et al, In the first place, Ms. Liebeck didn't lose. She won. So McDonalds should pay. One normally expects coffee to be hot, not 180 degrees, roughly the same temperature as the water in your car's radiator after it has been driven. Would you expect a cup of coffee to cause 3rd degree burns and need skin grafts? Further, McDonald's had complaint after comlaint and had been asked to not serve their coffee so hot, but they refused. I don't know what this has to do with this thread, but I quit McDonald's because of that incident. I won't buy anything from any of them. She should have gotten the original 15 million or whatever it was she won initially. But some right-wing wacked out Big Business judge reduced it. She barely paid her hospital bill.

Good grief - sorry I mentioned McDonalds LOL! The point is, like deferred adjudication in criminal cases, many civil respondents just decide to pay rather than pay to fight it, whether they are in the wrong or not. Back in the 80's, I owned a small manufacturing company, and got sued for descrimination because I fired a guy for showing up on the job drunk. I fought it, and it cost me over 10,000 but I won. (If you can call that winning.)

So, the problem just isn't on the criminal side of the courts system. It's on the civil side, too.

Ok here's my case. I got pulled over for having the bulbs that shine my plates burn out. I had just came back from traveling all day and went to see my G/F before going home - exhausted after driving all day. I had two beers within 45 minutes and I left to go home. Willco pulled me over.

COP: "Sir, I need you Dl and Insurance."

Me: "Ok, here. Why did you pull me over?"

COP: "The bulbs that are supposed to light your plates are out."

Me: "Oh really, let me see."

COP: Remain in your car, sir" hand on gun.

Me: "Ok. Whatever you say (hands in the air). Someones getting raped, robbed or murdered but those lights on those plates are pretty damn important I see.

COP: "I'll be back.

Me: "OK, say hello to my past please..."

He does what cops do and runs your records and driving records. I had a 20 year old driving under the influence. I was in college, my second year back in the 80's. I admit, I smoked pot and went to Taco Cabana for the Super Tex-Mex Plate. I got pulled over for an expired inspection sticker. My car wouldn't inspect, and for that matter, neither would I back then.

Cop comes back.

Cop: "Where you been tonight?"

Me: "Came back from San Angelo about 9:00 p.m., went and saw my g/f, and am now going home. Why do you ask?"

Cop: You been smoking anything tonight?"

Me: "No. I don't smoke." Why do you ask?"

Cop: DO YOU MIND IF I'M THE ONE ASKING THE QUESTIONS HERE????"

Me: "Well quit frankly, yes I do, why do you...."

Cop: "HAVE YOU HAD ANYTHING TO DRINK TONIGHT?" REALLY AGITATED.

Me: "This conversation is over. I'm terminating this interview."

Cop: GET OUT OF THE VEHICLE."

Me: (Silent)

Cop: Searches vehicle and finds nothing.

Me: Remaining silent, I notice my plate lights are working (one of them and that's all that's required to pass inspection.

Cop: COME HER SIR AND STAND RIGHT HERE. I NEED YOU TO... WHAT, NO? WHY ARE YOU SHAKING YOUR HEAD?

Me: remaining silent..

Cop: "WELL THEN JUST COME OVER HERE AND BLOW IN THIS AND I'LL LET YOU GO."

Me: (thinking to myself, I could pass this If I blew, but If I blew and anything showed up,under the limit or not, this guy could get me anyway. So why do it, self? Make him work for his evidence.) I remained silent.

Cop: (very red faced)- YOU KNOW I'M GOING TO HAVE TO ARREST YOU!!!

Me: silent

Cop: pissed. places handcuffs on his "subject" and makes them tight. Sits subject in vehicle. His Friday night "prize" is going to jail.

Went to court and my attorney said "Your video looks real good. They have no evidence. They are offering to dismiss the DWI. But they want to give you deferred adjudication for "obstruction of a highway."

DL suspended 2 years. 80 hours community service. Classes that made me even more smarter, and 18 months probation. Willco won't contest my expunge request for the DWI. BUT, I have to pay my attorney 1200 to get it done.

The problem I have with my situation is that they were using a past 20 year old conviction against me when I was a 19 year old kid, and the fact that police can still arrest you even if you blow under the limit, they can still make the case that you did not have full use of your mental whatever and you still go to jail. I knew all that before "Cop" so I just shut up and offered nothing. No evidence: no open containers in vehicle, no failed field test, and no blood/breath.

The ironic thing about it all is that my incident happened the same week as Dutton's alleged DWI incident downtown, so I'm glad he filed this bill because he knows, believe me, he knows first hand of what many of us went through and the challenges and expenses of having to defend it and the expense of having that non-sense expunged.

No, Stupid. when a judge finds someone guilty they state I adjudicate you guilty. Deferred is to put of Adjudication.. i.e, I see the facts, however I will not render judgement on this UNLESS you give me cause to.

As for pleading guilty, nope there too. Some enter a plea of no contest which is neither not guilty nor guilty. It is " I will not, or do not contest charges against me" i.e. Whatever dude, just send me to Deferred Adjudication so we can this thing started.

So you are 0 for 2 tonight.. so 'talketh abouteth this' sheesh..

Bottom line, Texas wrote checks it KNEW it would never allow to be cashed. It is wrong.

Many felony charges simply cause too much harm on a record just as a charge or arrest even without a record of conviction -- aggravated assault charges that fail because the conduct was self-defense, sexual molestation allegations brought solely because the family courts didn't make custody decisions the complainant liked and not because there was any evidence of misconduct, you name it -- to require defendants to live with the record for a decade or more until the statute of limitations passes, then to notice the statute of limitations has passed and hire an attorney to explain the defendant's right to an expunction under Texas law.

Deferred is routinely sold to clients as a dismissal, which is why they take it: it's ostensibly not a conviction, it's a chance to prove you're not a bad seed after all and to earn a dismissal by jumping through all the court-required hoops and paying a host of court-required fees (courses, supervision, etc.). Clients are shocked to learn they are regarded by folks reading public records as having been convicted after their lawyer explained they were getting a dismissal.

The current system has serious issues, not the least of which is the utterly incomprehensible (at least to clients) mystery of what a dismissal following deferred adjudication really means, and how (if at all) no contest differs from a plea of guilty (in Texas, there is authority that either plea is admission of all the alleged elements of the offense, so what's the difference? What do you do to attorneys who plea clients to deferreds by telling them it's a dismissal and they don't have to plead guilty?).

In Harris County, incidentally, clients have to admit the offense to get a deferred. No guilty plea (on which later to adjudicate guilt in case probation goes poorly), no plea deal.

In the federal system, expunction is crazier still. You can expunge a CONVICTION for small-peanuts possession of weed (there's a statute specific to it), but you have no right to expunge utterly unsubstantiated allegations that lead to a dismissal, because the feds think they have a criminal justice interest in maintaining an arrest record even of your completely bogus charges. Maybe Congress thinks it'll get tagged for weed but never accused of transferring a weapon without a permit, and wrote itself an expunction statute accordingly.

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